Draft Scotland Act 1998 (Modification of Schedule 5) Order 2026
(4 days, 16 hours ago)
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The Committee divided: - Ayes: 14 / Noes: 3 - Question accordingly agreed to.
The Chair
Before I call the Minister, it may be helpful to hon. Members to say that this is not a general debate on assisted dying, and I will not allow debate in that context. To be clear, this is a draft order to provide a narrow exception to reserved matters to enable a Bill to confer powers, and so on and so forth. We must stick to this draft statutory instrument. I will not accept a debate widening into the issue of assisted dying.
The Parliamentary Under-Secretary of State for Scotland (Kirsty McNeill)
I beg to move,
That the Committee has considered the draft Scotland Act 1998 (Modification of Schedule 5) Order 2026.
It is a pleasure to serve under your chairship, Mr Twigg. The draft order was laid before the House on 17 December 2025. As with all orders made under the Scotland Act 1998 that we have considered since the start of this Parliament, the order is the result of close collaborative working between the UK and Scottish Governments. The order before us is made under section 30 of the Scotland Act, which provides the power for the legislative competence of the Scottish Parliament to be altered. Specifically, it enables modifications to be made to schedules 4 or 5 of the Scotland Act. Orders made under that provision are subject to the affirmative procedure in the UK and Scottish Parliaments. The order was considered by the Scottish Parliament, having been considered by the Health and Social Care Committee, and it will be considered in the other place.
I now turn to the purpose of the draft order. The Assisted Dying for Terminally Ill Adults (Scotland) Bill is a Member’s Bill introduced by Liam McArthur MSP. It is currently before the Scottish Parliament and seeks to create an assisted dying regime in Scotland. I am acutely aware of the sincerely and strongly held views on the topic, and I emphasise that the UK Government are neutral on the matter of assisted dying. It is a matter for MSPs in the Scottish Parliament to determine whether there should be an assisted dying regime in Scotland.
The Scottish Government identified areas of the Bill as being outside legislative competence and, as such, requested a section 30 Scotland Act order from the UK Government in respect of substances and medical devices, as they considered that such provisions are fundamental to the operability of the Bill. The UK Government considered the request carefully and, following engagement with the Scottish Government, concluded that making a narrow, time-limited section 30 order would be the most appropriate action. That approach enables Members of the Scottish Parliament to consider the Bill in the Scottish Parliament with clarity as to how the matter of substances and devices that may be used for an assisted dying regime in Scotland could be dealt with, while protecting reserved matters such as medicines regulation. I emphasise that this is a limited and temporary change to the Scotland Act 1998.
To explain the time-limited nature of the draft order further, this section 30 order is time limited so as to reflect the circumstances of the Scottish Parliament Bill and the upcoming Scottish elections in May. The time-limited nature of the order reflects that, first, this is not a fundamental or permanent alteration to the devolution settlement and, secondly, it would not be appropriate to pre-empt consideration by a future Scottish Parliament. The time limit applies to the legislative competence of the Scottish Parliament but will not affect the future exercise of any regulation-making functions conferred by the Bill beyond 7 May 2026, should the Scottish Parliament determine to do so.
The draft order has been designed specifically to ensure that the Scottish Parliament can create an overall framework for medicines and devices to be used in an assisted dying regime, should it decide to do so. In particular, I take this opportunity to thank members of the Scottish Affairs Committee for their carefully considered report on the SI.
On the question of whether the Scottish Parliament would be able to amend or repeal the regulation-making powers under any Act in a future Scottish parliamentary Session—if the Bill is passed and contains regulation-making powers authorised by section 30 order—it would not be possible for the Scottish Parliament to amend or repeal those regulation-making powers in a future Session. The time limits within the section 30 order mean that that would no longer be within the Scottish Parliament’s legislative competence to do. Subject to the Secretary of State’s approval, it would instead be able to revoke or amend the regulations that had been made under those powers.
I am aware that the content of the draft order has prompted queries about the approach that the Government have taken: first, on why the Government have taken forward a section 30 order and not, for example, a section 104 order; secondly, on the scope of the draft order and the matters that are not included; and, thirdly, on the likelihood of other orders being brought forward under the Scotland Act 1998. A Committee scrutinised the draft order and the Scottish Affairs Committee considered it, and they both raised those points. I take this opportunity to thank them for their scrutiny and to provide answers, as follows.
The Government consider all requests for Scotland Act orders carefully. They look at what, if any, provisions made under the Scotland Act 1998 may be appropriate. That includes section 104 of the Act. Section 104 is routinely used to make provision in consequence of an Act of the Scottish Parliament—that is to say, once a Bill has Royal Assent. In this instance, it was not considered an appropriate option due to the limitations of the power. Section 104 cannot be used before a Bill achieves Royal Assent. The request was to take action before, because in the Scottish Government’s view, the provisions were fundamental to the operation of the Bill.
Moreover, section 104 cannot be used to create regulation-making functions. Section 30 was considered appropriate as it enables the Scottish Parliament to introduce regulation-making powers within the narrow scope of the order. In essence, section 30 was in this instance the only means of achieving both of those outcomes. The Government therefore believe that their approach is appropriate in the circumstances.
On the second point, the Government have been asked why the order does not include further subject areas that the Scottish Government have identified as being outside competence. The Government’s view is consistent: it is a matter for the Scottish Parliament to ensure that the legislation is within competence. Although section 30 orders have been used occasionally in the past as Bills have proceeded through the Scottish Parliament, it is not a regular practice nor would be expect it to be. We have agreed to it in those circumstances.
Consequential legislation is, however, routinely taken forward and is rightly considered by this House. Such consequential orders cover matters that cannot be legislated for by the Scottish Parliament. The Scottish Government asked the UK Government to consider section 104 orders in relation to professional regulation and opt-in measures, and subsequently, to consider a section 30 order in respect of those provisions.
The UK Government position is that consequential legislation is the appropriate means of addressing or considering reserve provisions. Fundamentally, the Government are not seeking to substantially alter the devolution settlement via this order. Therefore, it is appropriate that the order is narrow and addresses the key questions asked of us. Ministerial correspondence confirms that the Scottish Government were seeking agreement to a section 30 order on the narrow scope of substances and devices, with further consideration to be given to section 104 orders. The UK Government have agreed to further requests and consequential legislation, which is a normal occurrence.
Of course, the order before the Committee is the order the Government have agreed to take forward with the Scottish Government on the matter of substances and devices. That is the matter that the Government is seeking the approval of the Committee on. Both Governments agree that the specification of substances and devices, as well as their associated regulation, is fundamental to the operation of the Bill before the Scottish Parliament and the workability of the assisted dying regime, which the Bill seeks to introduce.
I reiterate that the UK Government maintain their neutral stance on assisted dying and do not endorse any particular outcome of the consideration of the Bill before the Scottish Parliament. I recognise that there is interest in the existence of schemes across the UK in view of the legislation being considered by the Scottish and UK Parliaments. The position is not changed by this order. The order has been specifically designed to ensure that the Scottish Parliament can create an overall framework for medicines and devices to be used in an assisted dying regime, should it choose to do so.
Andrew Bowie (West Aberdeenshire and Kincardine) (Con)
It is a pleasure to serve under your chairmanship, Mr Twigg. I must start by saying that it is rather odd to rise in a Delegated Legislation Committee pertaining to an order that is significant to the functioning of the devolution settlement and that will affect constituents of mine, as well as those of my hon. Friends the Members for Gordon and Buchan and for Dumfries and Galloway, and to see such a lack of attendance from Scottish Labour MPs, with the notable exceptions of the hon. Member for Central Ayrshire and the hon. Member for Glasgow West (Patricia Ferguson), who is here in her capacity as the Chair of the Scottish Affairs Committee but cannot vote on the order.
I was planning to begin my contribution by asking why the Government had not taken up the advice of the Scottish Affairs Committee to have this debate on the Floor of the House. I wonder whether we can read into the absence of Scottish Labour MPs, and even the Scotland Office Whip, some lack of support for the Government’s decision and a worry from the Government about getting the order through. It speaks to a lack of respect for Scots, who will be affected by this change, that a Government with 37 Members of Parliament representing constituencies north of the border could not muster more than one to sit on this incredibly significant Committee.
Even in the Conservatives’ diminished capacity in the previous Parliament, when we had only six MPs on the Government side from north of the border, we would have been able to muster more than one to sit on the Back Benches of such an important Committee, considering changes to legislation that will have a direct impact on the lives of Scots. I wonder whether the Government might think about what that represents and how it looks to many Scots who will be wondering where their representatives are, given that the draft order pertains directly to their lives and how we move forward on the important issue of legislating for and regulating assisted dying in this United Kingdom. That is a question for the Government to examine their conscience on.
As you said, Mr Twigg, this is not a debate about the merits of the assisted dying Bill being considered by colleagues in the Scottish Parliament, nor indeed of the Bill going through its stages in the other place here in the Palace of Westminster. There will be strong, impassioned views on both sides of the wider debate, but the progress of the Member’s Bill in Holyrood is a matter for our Members of the Scottish Parliament. It is a conscience issue for those in my party and others.
The matter before us is not the political context of the draft instrument, but the modification order itself—its competence, the precedent it establishes and its consequences. I must say that His Majesty’s Opposition have grave concerns about the implications of this instrument. The order invokes the powers granted under section 30 of the Scotland Act 1998 to alter the devolution settlement, granting the Scottish Parliament new powers to legislate on medicines, medical supplies and poisons, which would otherwise be a reserved competence.
Let us be clear: this is a novel and in some ways unprecedented circumstance. Use of that mechanism to amend the devolution settlement is rare. The last application was in 2012, enabling the Scottish Government to hold the 2014 independence referendum. That came about as a result of months of discussion, ending in the Edinburgh agreement signed by both the Scottish and the British Governments. The draft order, however, is unprecedented in so far as it makes provisions to enable the consideration of legislation that is not sponsored by the Scottish Government, but a Member’s Bill.
The assisted dying Bill under consideration in the Scottish Parliament would, under clause 15, give Scottish Ministers the power to specify the drugs or medication to be used to assist a patient to die. As matters stand, that is within the reserved competence of medicines, medical supplies and poisons. The Member’s Bill under discussion in the Scottish Parliament requires clarity on that issue and a raft of other reserved competences, and it is entirely unclear how the Government intend to resolve them, hence the attempt with this modification order to tread a middle ground with a time-limited provision, as the Minister set out.
Clearly, the issue of the regulation of medicines is integral to the MSPs’ consideration of the debate on assisted dying. This draft legislation, however, seems to be a leap ahead into a hypothetical position. It lays the foundations for the implementation of a Bill that the Scottish Government and the UK Government are neutral on. The Member’s Bill is not Government-sponsored legislation and, given that the assisted dying Bill is still under way in the Scottish Parliament and further steps remain required if that Bill is to sit within the Scottish Parliament’s legislative competence, it seems a strange sequencing of events pre-emptively to order the limited devolution of such powers to provide for the circumstances were the Bill to pass in Scotland.
Pete Wishart (Perth and Kinross-shire) (SNP)
I always enjoy the hon. Gentleman’s comments, but I thought he was going to offer a solution. If not a section 30 order, in order for the Bill to be considered, what does he propose we do?
Andrew Bowie
We hold issue with the hypothetical nature of the draft order. Were the Bill to pass, it should then be for the UK Government to determine how we facilitate the devolution of such powers, so as to make it legal and competent within the Scottish Government’s purview. I do not think, however, that the right step is pre-emptively to devolve power ahead of a Bill being passed. That, I am afraid, runs the risk of setting a dangerous precedent for other issues and items, which may come about as a result of the Members’ Bill process in the Scottish Parliament—not least, perhaps, around issues pertaining to the constitution, which I am sure the hon. Member was not referring to in any way.
On accountability, proposed new paragraph 4A(1) in article 2 of the draft order outlines the scenario in which powers can be conferred on Scottish Ministers to use subordinate legislation to identify the relevant medicines, medical supplies and poisons, subject to approval by the Secretary of State. Proposed new sub-paragraph (2) provides for the conferral of power to the Secretary of State for the regulation of such medicines. In either case, the Secretary of State retains a veto power over the regulation of medicines. The Scottish Government would not truly be accountable for the implementation, and the Secretary of State does not directly influence Scottish Parliament Bills.
I understand the Minister’s argument regarding the coherent regulation of substances across the United Kingdom, and the implications for the Medicines and Healthcare products Regulatory Agency, but does she foresee any incompatibility between the consistent regulation of substances across the UK and the effective implementation of any assisted dying subordinate legislation that would identify medicines to be used for that purpose?
Section 30 orders have never previously been used to confer powers directly on a British Government Minister. The precedent the order establishes is one of piecemeal devolution and disintegration. Furthermore, the veto power conferred on the Secretary of State, and the resultant confusion in terms of authority and accountability, is an unprecedented power-sharing lay-out, representing a departure from the constitutional norm we have had since 1999.
The Opposition are absolutely not against the sovereign Government of the United Kingdom taking an increasingly active and interested role in the governance of Scotland, but this is not the mechanism nor the way to go about having the conversation. Indeed, it is yet another reason why this debate should be taking place on the Floor of the House and not in a Committee Room at 2.30 pm on a busy afternoon, with no Scottish representation—bar one.
Moreover, the limited approach does not resolve remaining inconsistencies that we would face should the Scottish Parliament’s assisted dying Bill pass—for example, the regulation of medical professions, and employment and industrial relations. There are significant concerns over the mechanisms that might be invoked to remedy the remaining competency challenges, namely through the section 104 order.
The legislation poses a question that goes to the heart of issues surrounding devolution and Scottish Parliament competence. While we have consensus across the House that the issue of conscience regarding assisted dying in Scotland is now one for the MSPs in Holyrood to decide on, I cannot help but reflect on the truly disjointed situation the United Kingdom may land in if the Bill is passed in Scotland while defeated in England and Wales. What will the Minister and his Cabinet colleagues do in that situation?
On that point, how does the Minister intend to preserve unity in the medical profession across the United Kingdom? How does she intend to preserve uniformity for those who conscientiously object within the medical profession more broadly? What was the reasoning behind selecting a section 30 order over a section 63 order? Does she have any concerns regarding the use of a section 104 order to resolve the remaining litany of inconsistencies that are not broached in this modification order?
The Opposition will be voting against this mechanism today for the reasons I have set out. I must once again put on record my dissatisfaction—and that of the official Opposition—that this incredibly sensitive and significant debate is taking place with very little interest or representation from Scottish Labour MPs, and is not being given time on the Floor of the House.
Pete Wishart
It is a pleasure to serve with you in the Chair, Mr Twigg. I rise of course to support this legislation, and I am grateful that the Scottish Parliament, if it is passed, will now be able to consider the Assisted Dying for Terminally Ill Adults (Scotland) Bill without concerns about legislative competence.
I am utterly amazed to hear the hon. Member for West Aberdeenshire and Kincardine say that His Majesty’s Opposition are going to vote against the measure without any solution for how the Scottish Bill would be able to progress without the measure being passed. I urge members of the Committee to support the measure to ensure that Scotland gets the opportunity, just like Westminster, to consider with moral conscience the position on assisted dying. I find it astounding that the Conservatives are going to vote against it.
John Cooper
The position the hon. Member is putting forward is that we would somehow stop the assisted dying Bill progressing in Holyrood. That is simply not the case. I believe there is a date set for this to be further discussed in Holyrood. We are putting the cart before the horse here, because we are being asked to make provision for a Bill that may or may not see the light of day. It is a very peculiar situation. There is also the danger of the precedent that is being set; this is a Member’s Bill, and this system has never been used for one before, so a dangerous precedent could be set.
Pete Wishart
I always enjoy the hon. Gentleman’s words of wisdom, so would he attempt to respond if I set out the conditions that are required in order for the Scottish Bill to progress? The Scottish Bill cannot progress unless we have the devolution of poisons. I do not know if he is aware, but as we are talking about assisted dying, there has to be an end product of somebody dying, and the only way that is going to be done is through us having the opportunity to use the poisons that are currently reserved to Westminster. I do not know what proposal he has for that to take place.
How can a Scottish Bill go forward in the Scottish Parliament without the comfort that it will be within devolved responsibility and MSPs will be competent to make a decision? It is an absurd position from the Scottish Conservatives, and I cannot believe that they have come here today with this approach in mind. I ask them to reconsider, because just as this place has the opportunity to consider such a Bill, we need that opportunity in Scotland. This is an important issue, which should not be confined to this House. I hope the Scottish Conservatives think again.
In saying that, I find this a curious and convoluted piece of parliamentary procedure, which seems excessive and unnecessarily cumbersome, given the issues involved. Once again, a section 30 order is being used as the main means to allow the Scottish Parliament to legislate if required. I listened carefully to the Minister’s comments and I think that, if the Bill is passed, it will be accompanied by a section 104 order to devolve further specific identified provisions. I heard the Minister say there would be a section 104 order, and then I heard her say that there would not be one. She has to clarify, for all the other outstanding issues beyond the use and resourcing of poisons and medicines, how the Government intend to afford the comfort that the Scottish Parliament Bill could proceed, and what they would do if that Bill is passed. The section 104 order is an obvious means and mechanism to achieve that, so I hope that is exactly what she will tell me when she responds.
I have been in this place for 25 years. I know you cannot believe it, Mr Twigg, looking at this youthful Member of Parliament. In my time in Parliament, I have seen some 15 or so section 30 orders issued. The most notable, as has been mentioned, was the section 30 order through the Edinburgh agreement to devolve temporarily the right of the Scottish Parliament to hold devolved competence so it could have the referendum on Scottish independence. None has been accompanied by any other associated orders and none, other than the order for the referendum, has been issued with a sunset clause. It is therefore unusual to have a time-limited devolution section 30 order with a sunset clause, which will be on the face of that order.
As the Minister says, three areas have been identified where the proposed legislation of the Scottish Parliament strays into reserved responsibility. The main one, as the Minister outlined, is relevant to provisions that involve medicines, medical supplies and poisons. As I have just said to Conservative friends, those resources would be absolutely necessary if a terminally ill person asked for assistance to die. There will be general mystification in Scotland that, in a fully devolved health service, those vital responsibilities and resources remain with Westminster. The Minister will have to explain to us properly why, given that we are responsible for practically everything else to do with the national health service, as is right and proper in a devolved Scotland, those powers are not properly devolved.
If I was to suggest anything to the Minister, it would be to use this opportunity to make these powers permanent so that we could properly resource and equip our NHS to do its job. [Interruption.] I hear grumbles of complaint from my colleagues across the Floor, but I do not understand for a minute why the Scottish Parliament could not have these powers, just as the NHS in England has. Why is this the state of play just now?
The other issues are less clear, but apparently may stray into the “regulation of health professions” and “employment and industrial relations” reservations. I believe that is mainly to do with matters of conscience. I think we require more clarity; a further explanation of how that affects what are considered to be reserved regulations. There was great confusion in the Scottish Parliament that this would be the case.
It is certainly the case that Liam McArthur and the supporters of his Bill in the Scottish Parliament had absolutely no idea when presenting it that any of it strayed into reserved responsibilities. It came as a great surprise that that was the case. It was only when Scottish Government lawyers had a look at the Bill—as is their right and as they are right to do—that they discovered that there were issues to do with reservations. I am grateful that they had that look, so that we could try to resolve the issue.
As we have heard, the responsibilities will now be devolved under section 30, but only until this Parliament is dissolved. That time window is designed to allow the Scottish Parliament to consider the Bill and pass it, if it is agreed. But why not give the responsibilities to the Scottish Parliament without a time limit? There are only six weeks until the Scottish Parliament is dissolved for the Scottish general election, and there are questions about whether there will be enough time for the Bill to be considered properly. It is likely, or possible at least, that the next Parliament will want to revisit the debate, and I am pretty certain that some private Member will be keen to introduce it if there has been no opportunity to conclude the parliamentary consideration of the assisted dying Bill as it stands.
The second issue that concerns me is that the delegated powers can be exercised only with the agreement of the Secretary of State. Effectively, that gives a veto to the Secretary of State for Scotland over powers that will rightly be devolved, temporarily, to the Scottish Parliament. I have never seen anything quite like that in all the 15 or 16 section 30 orders that have been put through this House. We need a proper explanation of why that is the case.
Regardless of the fact that, for some reason, most Scottish MPs opted to exercise their right to a conscience vote in this House on an England and Wales-only Bill that has absolutely no impact on their constituencies, the Scottish Government rightly have no say on the English Bill. Why should Westminster have the last word on the provisions in the Scottish Bill? We need a proper explanation.
I will support the order; I have encouraged colleagues to do this, and I am utterly flummoxed by the position of the Scottish Conservatives. [Interruption.] I agree with the hon. Member for West Aberdeenshire and Kincardine that this debate should have been conducted on the Floor of the House, as it poses massive questions and issues for the devolved settlement. I wish the Minister had decided to do that; I think it was one of the recommendations in the report by the Scottish Affairs Committee, which is chaired by the hon. Member for Glasgow West, and it should have happened. I would be grateful for answers to the questions I have asked the Minister this afternoon.
Susan Murray (Mid Dunbartonshire) (LD)
It is an honour to serve under your chairship, Mr Twigg. For us Liberal Democrats, this is also a conscience vote. Within the limitations and context laid out in the order, we will support it.
Patricia Ferguson (Glasgow West) (Lab)
It is a pleasure to serve under your chairmanship, Mr Twigg. Instruments such as this draft order alter Scotland’s devolution settlement and require inter-governmental co-operation: areas that fall squarely within the remit of the Scottish Affairs Committee. For that reason, as members of this Committee will know, the Scottish Affairs Committee has scrutinised the draft order and published a report to aid Parliament’s consideration of the instrument. I should put on record that I am grateful to the Scotland Office for its engagement with us, and that our correspondence is of course published on the Committee’s website.
I wish to make it clear that the Committee remains neutral on the issue of assisted dying. Our report does not comment on the substance of that sensitive matter, but it does draw Parliament’s attention to some unusual features of the draft order. Given the relative rarity of section 30 orders, our interest is in the legal and constitutional implications of the order. I will give an overview of those issues in my remarks, but I will first take the opportunity to express my gratitude to my fellow Committee members, some of whom are here today, for their thoughtful consideration of the issues.
This statutory instrument would use powers under the Scotland Act to extend, in a narrow and time-limited way, the Scottish Parliament’s law-making powers. It would do that to enable the Assisted Dying for Terminally Ill Adults (Scotland) Bill to become law if the Scottish Parliament so decides. During the Bill’s scrutiny stages in the Scottish Parliament, the Scottish Government identified three areas that relate to reserved matters under the Scotland Act. If the UK Parliament does not take legislative action, the Bill as it currently stands would be outside the Scottish Parliament’s competence.
The specific way in which those issues are being resolved through this order gives rise to three observations that I would like to draw the Committee’s attention to. The Governments have adopted a two-stage, bifurcated approach to address the three competence issues. The draft section 30 order will only resolve the issues related to the “regulation of medicines and medical devices”. The other two outstanding competence issues, relating to the “regulation of medical professions” and “employment and industrial relations”, are expected to be resolved via a section 104 order. A section 104 order would make consequential provision after the Bill receives Royal Assent. That requires the relevant provisions to be removed from the Bill before it is passed by MSPs.
The Scottish Affairs Committee asked the UK Government why they adopted the two-stage approach, rather than addressing all the competence issues in one go. In response, the Government said that their approach would allow the Scottish Parliament to debate “with clarity” how the Bill’s “core” issues will be handled, rather than issues that might arise as a consequence. They also said that section 104 cannot be used to confer powers to make subordinate legislation, which the Bill’s provision on substances and devices for assisted dying would require. That explains why not all issues were dealt with using a section 104 order, but it does not explain why some issues are being dealt with by a section 104 order rather than this section 30 order. Our report highlighted that this approach has implications for effective scrutiny. In particular, it means that while the Scottish Parliament will have clarity over how issues relating to substances and devices will be handled, there will be no such clarity in respect of the other two competence issues.
The Scottish Government have already indicated that some provisions will need to be removed from the Bill before the final stage 3 vote. It would not be possible for MSPs to assess the section 104 order, which will be used to fill the legislative gaps, before the Bill is passed. Our report suggested that any uncertainty could be remedied by the UK Government publishing their section 104 order in draft, before the Scottish Parliament’s stage 3 consideration. Given the draft order’s constitutional significance, we also recommended that the instrument should be debated on the Floor of the House, rather than in a Delegated Legislation Committee; I note that that the approach has been taken in the other place. However, Members will know that this recommendation was not adopted by the Government, which is disappointing. On that point, I will take this opportunity to gently highlight to the Minister that it might have been courteous and helpful for the Department to have written to the Scottish Affairs Committee before this Delegated Legislation Committee was scheduled to respond to that specific and time-sensitive recommendation.
Our report also casts light on the ongoing role retained by UK Ministers within this draft order. The manner in which the draft order confers powers relating to medicines and devices means that these powers are only nominally transferred to the Scottish Parliament. The Secretary of State will retain the ultimate say over how those powers are used. It is clear that the approach has been agreed by both Governments. However, our report highlighted that it is a novel, though perhaps not unprecedented, approach. The default approach is that, when a matter has been devolved, the Scottish Parliament confers powers on Scottish Ministers, who are then answerable to the Scottish Parliament. However, this section 30 order envisages that some regulations resulting from the Act could be made by a UK Government Minister acting alone. Those regulations would not be subject to scrutiny by MSPs. This approach is unusual, as the Scottish Parliament does not normally confer powers on UK Ministers. Will the Minister clarify in her response how the remaining competence issues will be resolved and what consideration the Government have given to implications for effective scrutiny?
Finally, our report draws special attention to the time-limited nature of the draft order. While time limiting a section 30 order is not in itself new, this one is slightly different. The powers that the draft order confers would effectively expire if the current Bill does not complete its final stages before the Scottish Parliament elections this year. When questioned on this approach, the UK Government confirmed that they are willing to devolve competence only in respect to the specific Bill currently under consideration. However, what is less clear is how the time limit would affect subsequent amendments to the primary legislation further down the line—for example, if the Scottish Parliament wish to change the regulation-making powers of the Act. For the benefit of the Committee, I hope that the Minister will outline in her response whether the Scottish Parliament would be able to amend or repeal the Act’s regulation-making powers in a future Scottish parliamentary Session.
The draft order has important constitutional implications. It is right that these issues have been properly scrutinised, and I hope that the Scottish Affairs Committee’s report will be useful to the Committee and to the wider House. The Department has responded to the Committee’s report, and that response will be considered by the Committee at our meeting tomorrow. We will make every effort to ensure that the response is published before the House votes on this instrument.
I look forward to the Minister’s response to the points I have highlighted, particularly regarding the need for clarity on any forthcoming section 104 orders, the novel role for UK Ministers and the implications of the proposed time limit.
Kirsty McNeill
I thank hon. Members for their contributions and consideration—I hope to cover all the points raised in turn. I will begin with reflections from the hon. Member for West Aberdeenshire and Kincardine, who asked why this debate was not conducted on the Floor of the Commons. As he will know, because we have sat opposite each other in this space many times, Scotland Act 1998 orders are generally considered in Delegated Legislation Committees and subsequently put to the House by a motion, so that is entirely in keeping with normal practice.
The hon. Member for Perth and Kinross-shire asked for clarification of the UK Government’s role in medicines regulation and, indeed, a justification for that. The UK Government’s role in medicines regulation is to set and oversee the UK-wide statutory framework that ensures licensed medicines are safe, effective and of high quality before they can be supplied to patients. In our view, it is critical that regulatory consistency is maintained across the UK. It has been a key priority post the EU exit, and we have prioritised avoiding any divergence between regulatory approaches.
The limited nature of that change will ensure that the overall integrity of the UK-wide medicines regime is retained, whether the Scottish Parliament approves the McArthur Bill or not. Staying with that line of questioning, the hon. Member for Perth and Kinross-shire asked why the Secretary of State will continue to have the final say over how that power is used. The draft order’s change to the legislative competence is specifically designed to allow for that to be retained, because we think that the UK Government have an appropriate role in the overarching regulation of medicines across the UK. That is why it is, and will remain, reserved. However, we do want to enable the Scottish Parliament to introduce provisions that could confer power in that way—in a way that simultaneously maintains the integrity of the UK medicines regime and allows the Scottish Parliament to debate that which is legitimately inside their competence.
Pete Wishart
The Minister is right that the Scotland Office has an appropriate role, but to have the final say is quite different from anything we have considered in section 34. She has not given any explanation of why that is required.
Kirsty McNeill
It is required and desirable because we believe the integrity of the medicines regulatory regime should be maintained across the United Kingdom. We are trying to strike a balance. We want to give the Scottish Parliament the ability to confer the power to Scottish Ministers to identify in this case, and in only this case, that substances and devices that could be used in assisted dying are able to be so used if that is the will of the Scottish Parliament. Of course, that is provided that that is done by way of subordinate legislation made with the agreement of the Secretary of State. The order also provides that the Scottish Parliament may confer powers on the Secretary of State to regulate such substances and devices by subordinate legislation. In our view, they are separate matters and we are trying to find a balance between the two.
Turning to the questions raised by the Chair of the Scottish Affairs Committee—
Kirsty McNeill
Let me just put on the record my great thanks to the Committee and its Chair, my hon. Friend the Member for Glasgow West, for their scrutiny. I hope I will cover all the points that she raised.
Andrew Bowie
I also put on the record my thanks to the Committee and the role that it played in providing scrutiny to the draft statutory instrument before us today. The Minister has not explained why there are so few Scottish Labour MPs in the room this afternoon—the question I asked at the very beginning and thrice in my comments. It cannot be that, aside from the hon. Member for Glasgow West and the Minister, there is a lack of interest in this SI, given the important implications of the Bill and how law is delivered in Scotland—so might the Minister provide an explanation?
Kirsty McNeill
The provisions in this order are incredibly narrow and time-limited. It is appropriate that it is done in a delegated legislation environment. Members are doing all manner of business of the House and, indeed, the business of their constituents.
Andrew Bowie
The Minister is being very generous with her time. As she referenced, I have been through numerous Committees with Conservative and Labour Ministers. It has never been the case that all but one of the Members on the Government Benches have been from outside Scotland. We are considering amendments to the Scotland Act 1998. Surely she does not expect us to believe that the 35 Scottish Labour MPs are so busy that they could not find time to come along to debate this important issue before us today.
Kirsty McNeill
I am here to lay out the Government’s view on the Scotland Act order. I am not the diary secretary for my colleagues—I do not think the hon. Member would expect me to be. We are here to debate this order.
The Chair of the Scottish Affairs Committee and indeed other members of this Committee have raised repeatedly a question that I hope I addressed in my opening remarks. But let me reiterate the view about why a section 30 and not a section 104 order is the appropriate way to get done what we need to get done today. This is for two reasons. A section 104 order cannot be invoked until a Bill has had Royal Assent. Likewise, it cannot be used to confer regulatory powers, which is specifically what the Scottish Government asked for in the intergovernmental conversations that we had. The Scottish Government have noted that the details of what a future section 104 order might contain are still being worked through, so it would not be possible for us to say in advance what our response to a request for a section 104 order would be, because no such request has been forthcoming.
To clarify for the Committee, in correspondence to the Scottish Parliament, the Scottish Government have stated:
“'It is likely that some, if not all, of the relevant provisions will need to be handled through a section 104 Order which, as outlined previously, will mean that they need to be removed from the Bill to be dealt with in that way. However, consideration is being given to whether it might, in some cases, be possible to amend the provisions to limit the scope of the powers so that they can be more clearly understood to be for purposes that are within the legislative competence of the Scottish Parliament.”
Pete Wishart
I cannot see why there could not be a section 30 order for the outstanding provisions beyond the medical resources. The Minister could do that. This is a failsafe. However, there is absolutely nothing wrong with what the Chair of the Scottish Affairs Committee requested, which is some sort of draft order, so that we could see specifically what would be included. That would at least give some comfort to the MSPs who are considering this Bill.
Kirsty McNeill
Officials of both Governments are working through a range of scenarios, but what we cannot do is table an order about a Bill that has not been passed. There are ongoing discussions, as we would hope and expect, but we cannot use a section 104 order until a Bill has received Royal Assent.
The Chair of the Scottish Affairs Committee has asked for clarification on whether the Scottish Parliament would be able to amend or repeal the Act’s regulation-making powers in a future Scottish parliamentary Session. I am pleased to clarify that if the Bill is passed and contains regulatory-making powers authorised by a section 30 order, it would not be possible for the Scottish Parliament to amend or repeal those regulation-making powers in a future Session. The time limits in this section 30 order mean that it would no longer be within the Scottish Parliament’s legislative competence to do so. Instead, subject to the Secretary of State’s approval, they would be able to revoke or amend the regulations that have been made under those powers.
I will take a moment to answer the question that the Chair of the Scottish Affairs Committee raised about receiving a copy of the response to the report in a timely fashion. We have responded, and I am grateful to the Committee for submitting it, but her points about timeliness and courtesy are well taken. I will make sure that courtesies are observed in future.
The hon. Member for Perth and Kinross-shire asked about whether the UK Government would consent to a future section 104 order request. As per the correspondence between the Scottish Parliament and Scottish Government, we understand that the Scottish Government will seek the agreement of the UK Government after the Bill passes. That will ensure that practitioners are protected should they choose to opt out of an assisted dying service. We expect to agree in principle to take forward that order, but it will be considered in the usual way, once we have actual legislation to look at.
The hon. Member for Perth and Kinross-shire also asked whether, in effect, failure to pass this draft order would have the practical effect of stopping legislation progressing in the Scottish Parliament. That is our view. We must pass this today to give practical expression to whatever choice the Scottish Parliament makes. It is their choice to make, but whatever that is, we believe it is our constitutional responsibility to facilitate the progress of legislation through the Scottish Parliament.
A number of questions were asked about the justification for a time limit in the draft order. The time limit reflects two things. First, it reflects that this is not a permanent—perhaps to the displeasure of the hon. Member for Perth and Kinross-shire—alteration to the devolution settlement, and secondly, that it would not be appropriate to pre-empt consideration by any future Scottish Parliament and attempt to bind it in that way. The section 30 order on an independence referendum illustrates that there is a precedent for including a time limit in a section 30 order. We have concluded that it is appropriate to provide for temporary, and temporary only, devolution of legislative competence in a section 30 order, because it is seeking to address a very specific issue.
We are considering a very narrow and technical order that provides the Scottish Parliament with a time-limited ability to include powers in the Bill to identify and regulate substances and devices that could be used in an assisted dying regime. It is important to be clear that the draft order enables the Scottish Parliament to do that, if it chooses—it in no way compels it to. The decision on whether to create an assisted dying regime in Scotland remains, as it should be, a decision for Members of the Scottish Parliament. Although the Government remain neutral on assisted dying, we believe that our approach with this draft order is appropriate.
The Chair
Before I put the Question, for clarity I should mention that the Chair of the Scottish Affairs Committee does not have a vote on the draft order.
Question put.